Docket No. A-3708-20
Decided October 5, 2022
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Court of New Jersey decided plaintiff’s appeal of an order dismissing her complaint against defendant pursuant to the Prevention of Domestic Violence Act.
Following an almost nine year marriage that produced one child, the parties were divorced. A few days later, the parties consented to a “Permanent Civil Restraining Order,” which barred the defendant from being with 1,000 ft. of plaintiff’s residence and place of business, and barred him from living within fifteen miles of plaintiff’s residence for a period of two years. Plaintiff subsequently filed a domestic violence complaint against the defendant alleging two predicate acts of harassment. The first alleged that defendant told the parties’ minor child that “he was going to hurt [plaintiff] and [plaintiff’s boyfriend], poison the dogs, drown [plaintiff] and rip the child’s teddy apart and lock him in a dark room.” A few weeks prior to that incident, plaintiff stated that defendant told her on the phone that the current civil restraints they have in place don’t mean anything to him and that that police would not help her. The plaintiff also alleged a lengthy history of domestic violence by the defendant. The second act alleged that defendant told the parties’ minor child to tell plaintiff that defendant said he would hurt the child, plaintiff and plaintiff’s boyfriend, as well as the dogs.
The trial court issued plaintiff a Temporary Restraining Order (“TRO”) against the defendant, granted the defendant parenting time, and ordered that both parties and the minor child undergo psychiatric evaluations. At the Final Restraining Order (“FRO”) hearing, plaintiff requested the court hold a hearing to determine the parties’ five year old minor child’s competency to testify and the judge denied the request. The court reasoned that the trial court’s prior finding in the parties’ FV matter that the child had difficulty recognizing right from wrong and telling the truth.
Thereafter, the trial court dismissed the plaintiff’s complaint. The trial court found the plaintiff’s testimony regarding the alleged history of domestic violence between the parties to be not credible. Additionally, the court also found that the threats allegedly overheard by the parties’ minor child appears to have been “coached,” and the second predicate act of harassment had not been established by the plaintiff.
On appeal, plaintiff argues that the court did not have jurisdiction to order plaintiff to undergo a phycological evaluation during an “FV” or DV Restraining Order matter; that the court erred in permitting the expert to opine on parental fitness, alienation and other custody type matters after her evaluations were completed without apprising plaintiff that this was part of the evaluation; that the court erred in relying upon the expert report which plaintiff argued was hearsay; and that the court erred in not conducting a competency hearing on whether the minor child would be permitted to testify.
The Appellate Court affirmed in part, reversed in part, and remanded the case in part. The court rejected plaintiff’s first three arguments, noting that excluding the issue of the minor child’s competency to testify, none of the trial judge’s findings relied upon the evaluation, and instead were predicated on the trial testimony and evidence. Ultimately, the Appellate Court remanded the case for the trial court to supplement its findings regarding its decision on plaintiff’s request to have the child testify.
At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to FRO motions. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
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